Gilchrist, C. J.
It is the duty of a guardian ad litem, to ascertain from the infant and his friends, or from other proper sources of information, what are the legal and equitable rights [487]*487of his ward. And it is the special duty of the guardian to bring those rights directly under the consideration of the court for decision. An infant’s answer is made by his guardian, and is generally confined to a mere submission of his rights and interests in the matters in question, to the care and protection of the court. It is said by Chancellor Kent, in Mills v. Dennis, 3 Johns. Ch. Rep. 368, that a decree cannot safely be obtained against an infant upon the mere fact of taking the bill pro confesso, or upon an answer in form by the guardian ad litem. The answer in such cases generally is, that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the plaintiff to prove them as he shall be advised, and throws himself upon the protection of the court. A decree upon such an answer would not bind the infant, and he could open it or set it aside when he should become of ago. No laches can be imputed to an infant, and no valid decree can be awarded against him merely by default. Where infants are concerned, the court will not make a decree by consent, without first referring it to the master, to ascertain whether it is for their benefit. But when once a decree has been pronounced without that previous step, it is considered as of the same authority as if it had been referred to the master, and he had made a report thereupon that it would be for their benefit. Wall v. Bushby, 1 Bro. C. C. 484. In the case of Mondey v. Mondey, 1 V. & B. 223, the bill prayed for the sale of certain mortgaged property, and a reference was ordered to the master, in case the mortgagees should consent to a sale, to inquire and report whether it would be for the benefit of the infant heir, that the estate should be sold. A similar order was made in the case of Mills v. Dennis, 3 Johns. Ch. Rep. 371.
Upon the principles above stated, as the infants are peculiarly under the care and protection of the Court, we shall order that it be referred to a master to inquire and report to the Court whether the partition in this case is for the benefit of the infant heirs of Susan Merrill.
Albert R. Hatch, Esq., the master appointed by the Court, [488]*488subsequently made a report, from which it appeared that it would be for the benefit of the infants that the partition should be established.
Gilchrist, C. J. All the facts at present material to the interests of the parties, and which they desire to submit to us, being now before us, the questions arising in the case may now be determined.
It is clear, that there was no resulting trust in favor of Sally Jewell. A simple resulting trust exists where land is purchased in the name of one person, and the consideration is paid by another. But such is not the present case. It was agreed that Jonathan and Jacob should own the land in fee, and that Sally, in consideration of the money she had advanced towards the purchase, should have her wood from the land during her life. Whatever interest she had was founded on the agreement or declaration of the parties, and did not arise by implication of law. And whenever a trust is founded upon the agreement of a party, a writing is essential. Pritchard v. Brown, 4 N. H. Rep. 401. The trust which results to the purchaser by operation of law, must be a pure, unmixed trust of the ownership and title of the land or estate itself, and not an interest in the proceeds of the land, nor a lien upon it as a security for an advance or other demand, nor an equity or a right to a sum of money to be raised out of the land, or upon the security, of it. These rights are the subjects of the contracts or agreements of the parties, and may form the substance of express trusts, but they require for their subsistence that the title and legal estate of the premises which yield the aliment that sustains them, should reside, not nominally, but potentially in the trustee. The sole operation of pure and simple trusts is to vest the estate in the actual purchaser, in exclusion of the nominal grantee, and not to regulate the equitable rights and interests of those for whose benefit the legal owner may be under a moral obligation to hold or apply it. White v. Carpenter, 2 Paige, 238. The trust must be of an aliquot part of the interest in the property. Ibid. 240. When an estate results by implication of law, the title and legal estate [489]*489of the whole, or of some aliquot part of the whole, must vest in the party to whom it results. Ibid. A resulting trust cannot be raised in favor of a person by the mere payment of the purchase-money, if it is not the intention of either party that the legal estate should vest in him. Ibid. 265.
Now Jonathan and Jacob Jewell agreed with Sally, that for her portion of the money invested in the land, she should receive her wood during her life. The parties intended not that the legal or equitable estate should vest in her, but in the others. Instead of any estate, instead of any interest in the land, she accepted their promise that she should have her wood. She, then, had no interest to be affected by the partition, and as regards her, it must be held to be valid. The promise to her is as binding, after the title to the land has passed from her brothers, as it was while they retained it.
As 'to Mrs. Merrill’s deed, it was suggested when the.former opinion was delivered in this case, whether her confirmation might make it good. It has been held, that the acknowledgment of a deed executed by a woman during her marriage, after the death of her husband, may in some eases amount to a redelivery of it, and so render it valid. In Goodright v. Straphan, Cowp. 201, a man and his wife being entitled to the reversion of a house in right of the wife, by deed executed by the husband and wife, conveyed it to a person by way of mortgage. After the death of the husband, the wife, by three separate papers under her hand, acknowledged the mortgage. The court held that these papers were equivalent to a redelivery of the deed. As in England, in general, the deed of a married woman is invalid, this case is an authority for the position, that it is, notwithstanding, capable of confirmation, or of something tantamount to it. But see Ela v. Card, 2 N. H. Rep. 175.
But, however the law might be held if Mrs. Merrill were living, and should confirm her deed, or attempt to do so, her husband cannot by a deed executed since her decease, give any Validity to her conveyance. If her deed could be confirmed, it must be by her alone. The only effect of his deed would be to transfer to the grantee such rights to the land as he acquired [490]*490by the coverture, and her title to the land descended to her children.
We come then to the consideration of the question, whether a decree should be made establishing the partition against the infants, and if so, how far it will bind their estate ? It seems clear that the partition should be established. The guardian ad litem,, to whom their interests are intrusted, assents to it on their behalf, and the master has reported that it will be for their benefit, and nothing of a contrary tendency has been shown in the progress of the cause.
It is said by Chancellor Kent, in Mills v. Dennis,
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Gilchrist, C. J.
It is the duty of a guardian ad litem, to ascertain from the infant and his friends, or from other proper sources of information, what are the legal and equitable rights [487]*487of his ward. And it is the special duty of the guardian to bring those rights directly under the consideration of the court for decision. An infant’s answer is made by his guardian, and is generally confined to a mere submission of his rights and interests in the matters in question, to the care and protection of the court. It is said by Chancellor Kent, in Mills v. Dennis, 3 Johns. Ch. Rep. 368, that a decree cannot safely be obtained against an infant upon the mere fact of taking the bill pro confesso, or upon an answer in form by the guardian ad litem. The answer in such cases generally is, that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the plaintiff to prove them as he shall be advised, and throws himself upon the protection of the court. A decree upon such an answer would not bind the infant, and he could open it or set it aside when he should become of ago. No laches can be imputed to an infant, and no valid decree can be awarded against him merely by default. Where infants are concerned, the court will not make a decree by consent, without first referring it to the master, to ascertain whether it is for their benefit. But when once a decree has been pronounced without that previous step, it is considered as of the same authority as if it had been referred to the master, and he had made a report thereupon that it would be for their benefit. Wall v. Bushby, 1 Bro. C. C. 484. In the case of Mondey v. Mondey, 1 V. & B. 223, the bill prayed for the sale of certain mortgaged property, and a reference was ordered to the master, in case the mortgagees should consent to a sale, to inquire and report whether it would be for the benefit of the infant heir, that the estate should be sold. A similar order was made in the case of Mills v. Dennis, 3 Johns. Ch. Rep. 371.
Upon the principles above stated, as the infants are peculiarly under the care and protection of the Court, we shall order that it be referred to a master to inquire and report to the Court whether the partition in this case is for the benefit of the infant heirs of Susan Merrill.
Albert R. Hatch, Esq., the master appointed by the Court, [488]*488subsequently made a report, from which it appeared that it would be for the benefit of the infants that the partition should be established.
Gilchrist, C. J. All the facts at present material to the interests of the parties, and which they desire to submit to us, being now before us, the questions arising in the case may now be determined.
It is clear, that there was no resulting trust in favor of Sally Jewell. A simple resulting trust exists where land is purchased in the name of one person, and the consideration is paid by another. But such is not the present case. It was agreed that Jonathan and Jacob should own the land in fee, and that Sally, in consideration of the money she had advanced towards the purchase, should have her wood from the land during her life. Whatever interest she had was founded on the agreement or declaration of the parties, and did not arise by implication of law. And whenever a trust is founded upon the agreement of a party, a writing is essential. Pritchard v. Brown, 4 N. H. Rep. 401. The trust which results to the purchaser by operation of law, must be a pure, unmixed trust of the ownership and title of the land or estate itself, and not an interest in the proceeds of the land, nor a lien upon it as a security for an advance or other demand, nor an equity or a right to a sum of money to be raised out of the land, or upon the security, of it. These rights are the subjects of the contracts or agreements of the parties, and may form the substance of express trusts, but they require for their subsistence that the title and legal estate of the premises which yield the aliment that sustains them, should reside, not nominally, but potentially in the trustee. The sole operation of pure and simple trusts is to vest the estate in the actual purchaser, in exclusion of the nominal grantee, and not to regulate the equitable rights and interests of those for whose benefit the legal owner may be under a moral obligation to hold or apply it. White v. Carpenter, 2 Paige, 238. The trust must be of an aliquot part of the interest in the property. Ibid. 240. When an estate results by implication of law, the title and legal estate [489]*489of the whole, or of some aliquot part of the whole, must vest in the party to whom it results. Ibid. A resulting trust cannot be raised in favor of a person by the mere payment of the purchase-money, if it is not the intention of either party that the legal estate should vest in him. Ibid. 265.
Now Jonathan and Jacob Jewell agreed with Sally, that for her portion of the money invested in the land, she should receive her wood during her life. The parties intended not that the legal or equitable estate should vest in her, but in the others. Instead of any estate, instead of any interest in the land, she accepted their promise that she should have her wood. She, then, had no interest to be affected by the partition, and as regards her, it must be held to be valid. The promise to her is as binding, after the title to the land has passed from her brothers, as it was while they retained it.
As 'to Mrs. Merrill’s deed, it was suggested when the.former opinion was delivered in this case, whether her confirmation might make it good. It has been held, that the acknowledgment of a deed executed by a woman during her marriage, after the death of her husband, may in some eases amount to a redelivery of it, and so render it valid. In Goodright v. Straphan, Cowp. 201, a man and his wife being entitled to the reversion of a house in right of the wife, by deed executed by the husband and wife, conveyed it to a person by way of mortgage. After the death of the husband, the wife, by three separate papers under her hand, acknowledged the mortgage. The court held that these papers were equivalent to a redelivery of the deed. As in England, in general, the deed of a married woman is invalid, this case is an authority for the position, that it is, notwithstanding, capable of confirmation, or of something tantamount to it. But see Ela v. Card, 2 N. H. Rep. 175.
But, however the law might be held if Mrs. Merrill were living, and should confirm her deed, or attempt to do so, her husband cannot by a deed executed since her decease, give any Validity to her conveyance. If her deed could be confirmed, it must be by her alone. The only effect of his deed would be to transfer to the grantee such rights to the land as he acquired [490]*490by the coverture, and her title to the land descended to her children.
We come then to the consideration of the question, whether a decree should be made establishing the partition against the infants, and if so, how far it will bind their estate ? It seems clear that the partition should be established. The guardian ad litem,, to whom their interests are intrusted, assents to it on their behalf, and the master has reported that it will be for their benefit, and nothing of a contrary tendency has been shown in the progress of the cause.
It is said by Chancellor Kent, in Mills v. Dennis, 3 Johns. Ch. Rep. 368, that it was the ancient and has been the settled practice in chancery, that no decree should be made against an infant without giving him a day, which was usually six months after he comes of age, to show cause against it. That was a case of a bill to foreclose a mortgage. In Napier v. Lady Effingham, 2 P. Wms. 403, which was a bill to be relieved against a conveyance improperly procured from the plaintiff’s ancestor, Lord Chancellor Parker said, that all decrees against infants gave them six months after they came of age to show cause. And the law is thus stated in Cary v. Bertie, 2 Vernon, 342. It is said in Eyre v. Countess of Shaftesbury, 2 P. Wms. 120, that in all decrees against infants, even in the plainest cases, a day must be given them to show cause when they come of age. In 2 Kent’s Com. 245, the author says, that the decree in ordinary cases would be bad on the face of it, and ground for a bill of review, if it omitted to give the infant a day to show cause. But the decisions on this point do not all harmonize with each other. Lord Hardwicke, for instance, in Sheffield v. The Duchess of Buckingham, 1 West, 684, defined the practice of his time, saying that he took it to be the course of the court not to give a day unless a conveyance was directed either in form or substance. Some alteration has been made in England in the law in this respect, by an act of Parliament passed 1 Will. 4, which renders it unnecessary to give the infant a day to show cause where the legal estate is directed to be sold for the payment of debts, but in other cases the law remains as before. [491]*491Since the passage of that act in Price v. Carver, 3 Myl. & Cr. 162, Lord Cottenham said that all cases of foreclosure and partition, and all others where a conveyance is required from an heir, except those in which the parol would demur at law, are cases in which a day is given. Attorney-General v. Hamilton, 1 Madd. 214; Agar v. Fairfax, 17 Vesey, 545, 554. The last cited cases were bills in equity for a partition.
The present bill is for the purpose, substantially, of enforcing a parol partition of lands, which has been executed, and possession taken accordingly. It has been held, that partition between tenants in tail, though only by parol, shall bind the issue. Thomas v. Gyles, 1 Yern. 233. In Ireland v. Rittle, 1 Atk. 541, the Lord Chancellor said, “ where there has been a long possession and an agreement for owelty of partition, this Court is strongly inclined to quiet the enjoyment of such estate.” This case, therefore, comes within the principle stated by Lord Hardwiclce.1 A decree, establishing the partition, would have the effect of the conveyance of the estate of the infants. We shall therefore decree that the partition under which the orator claims one half of the Burnt Swamp land, divided and severed, be established; that the defendant Munroe Gr. J. Tuxbury be enjoined from prosecuting his suit to recover one eighth part of the land of the orator; and that this decree be binding on the defendants, the infants, unless on being served with subpoena, they shall within six months after they shall attain the age of twenty-one, show to this court good cause to the contrary.